Will the court 'become a conscious agent overturning progressive laws the way the court was before the New Deal'?

Simon Lazarus is public policy counsel to the National Senior Citizens Law Center and a frequent commentator on the Supreme Court and the intersection of the law and economic and labor issues. I called him today to ask about what the next justice will need to do, and be prepared for, when they arrive at the court. A lightly edited transcript of our interview follows.

EK: Do you know Elena Kagan personally?

SL: No, I don't.

EK: By reputation?

SL: I didn't go to Harvard. I went to Yale, thank God. But I have friends on the faculty of Harvard, and it was just an unimaginable snake pit. The fact that she was able to bring some measure of reconciliation to that place is an extremely impressive achievement.

EK: This is one of those things that's coming up in a lot of my interviews. Everyone agrees she's brilliant and hardworking, but they really emphasize her tactical intelligence, her ability to negotiate out to the position she wants. I guess more people have seen it because she worked on the Hill and in the executive branch. But I don't know how to weight it. How important are these skills?

SL: I think it's an important skill, but it's a different skill. Being a judge is a cerebral enterprise. It's not like political negotiation where you're trading this piece of the decision for that piece of the decision. It's more being able to understand other people's intellectual frameworks and figuring out ways to work within those frameworks and nudge them in the direction of results you favor. Stevens was just extraordinarily good at this, and I think Breyer is good at it too. But on this court, which is so dominated by intellectual legal superstars, you have to be able to play at that level in order to get in the game in the first place. For instance, I don't think Earl Warren would be enormously effective in moderating Roberts's or Kennedy's views because they wouldn't take him seriously. That doesn't mean Warren wasn't a great justice. But it's a different court today.

EK: People complain that Kagan's written record is thin, so what are you looking to hear from her testimony?

SL: We are in an era where the issue is whether the court will become a conscious agent overturning progressive laws the way the court was before the New Deal. For instance, the question of whether the court will overturn the new health-care law. The culture war issues are becoming superceded by questions of validity and effectiveness of statutes designed to protect people. The court's assault on these statutes has not just been high-profile constitutional decisions where the court says the law is invalid. They've been in the legal underbrush, narrowly construing laws so they're not workable or eliminating remedies so they can't be enforced or stopping consumers and businesses from getting into court with claims in the first place.

That's been largely unnoticed, though Sen. Pat Leahy and, increasingly, President Obama have figured it out. A year ago, the White House seemed to consider the court a very low priority. But this year, you have Obama projecting a substantive vision of the court's role, and strongly and repeatedly going out of his way to attack the court for bending laws to disadvantage ordinary people. The shock of the Citizens United decision and the litigation challenging the health-care reform law has been a wake-up call.

EK: A lot of what you're saying sounds like a defensive vision for legal liberalism. That's a change, right? The old version was that conservatives wanted a passive judiciary that wouldn't try to legislate from the bench while liberals wanted an active judiciary that saw social justice as part of its mandate. But you're saying that it's now flipped and conservatives want the active judiciary while liberals want a more passive court that won't impede legislative progress. Is that right? And if so, is that a sufficient philosophy for liberals?

SL: Over the last 20 or 30 years, conservative majorities have done so much damage to very significant New Deal and Great Society and kindred social legislation that undoing that damage would actually be a very affirmative broad goal to set. And the philosophy behind that goal, a philosophy that Justice Stevens held close, is that it's critical for judges to interpret statutes to promote the basic goals that Congress had in mind when it enacted the statute.

That might sound obvious, but a lot of the techniques that conservatives have used have given them an excuse to defy certain reform goals. Take the Lily Ledbetter case. The situation there was an ambiguous statute of limitations on when you can bring a case for paycheck discrimination. The Supreme Court said there's a 180-day statute of limitations, and that means you need to file within 180 days of the violation. The court held that the clock began ticking when the managers set her pay 25 years ago, not when she got her last paycheck. This sounds like technical gobbledygook, but most people who're discriminated against on pay don't know it. So this is a way of construing an individual term of the statute in order to defeat the intent of the statute. And this is occurring all over the place. So if you want one touchstone for a justice that would be appropriate for this era, it would be someone who is committed to restoring judicial deference to the broad purposes of statutes.

Good to hear Breyer getting a little love. The press, once again intent on creating truth from its own ignorance by process of repetition, keeps emphasizing the importance of Obama appointing a smart consensus builder to replace Stevens. Of course, Breyer, a pragmatist with a sharp legal mind who gets along well with Scalia, already fits this mold.

I'd prefer judicial deference to the constitution, rather than statutes.

I don't see why pay discrimination is a problem. She was happy receiving her pay for 25 years until she realized other people were making more. Yeah I wouldn't be thrilled about it either, but I'd be more mad at myself for not pressing for a raise/seeking work elsewhere. A company should be allowed to pay whatever it agrees upon with its employees.

If this woman was really being underpaid, why on Earth didn't she leave? It's a free country. For every firm that discriminates against women there's another one that's willing to pay a little more to poach productive employees from competitors, no matter what gender/race they may be. And if no one is paying you what you think you're worth, start your own company and pay yourself - and hire away other underpaid women/miniorities and eat those old dinosaurs' lunches.

I may not be paying that much attention but exactly WHAT progressive laws have been overturned?

Rowe V. Wade-- intact

Social Security-- intact although looking a little green (or red)

Medicare-- intact although being "restructured" by the healthcare bill

justin,

i'm sorry but you just don't get the point they're making. Its semantically the same as affirmative action. A pound of flesh is required no matter how silly it is. That's their rules. We just have to live by them.

Roe vs. Wade was not a piece of progressive legislation, it was a Supreme Court case that held that state laws broadly restricting abortion violated the Constitution. The court has thus far respected that case as precedent for the most part.

I am not aware of cases that were brought before the Supreme Court that presented the Court with an opportunity to "overturn" Social Security or Medicare. Could you kindly cite those?

I think most would agree that the recent Citizens United decision was an example of the court throwing out an entire body of law stretching back for decades, in order to allow unlimited corporate spending/influence in elections.

The issue in the Ledbetter case is not whether her pay discrimation claim had merit, the question in front of the Court was whether the statute of limitations for testing the claim was unfair. The Supreme Court said the statute was constitutional and the US Congress then changed the time frame.

It is downright anachronistic for you and Justin84 to argue here that employers should have an absolute right to systematically discriminate against one gender or race when setting pay, and it is silly to use the Ledbetter case as the basis of that argument.

BTW, to the president, covering up for a couple fellow liberal travelers is just alright by him.

This Kagen issue will be dismissed amid the cries of sexism, hatred, and racism. I am not sure why racism will be claimed, but most issues that liberals disagree about, they start calling the messenger of the message they cannot argue with, a racist. So I figure that anyone who points out problems with Kagen will be called the same three things that always used. It speaks poorly of her, that she had precedent, solid evidence, and a path for an equitable resolution, but she chose to depart from the norm and exonerate the fellow travelers who plagiarized, Tribe and Ogletree.

Citizens United was an excellent decision. Freedom of speech is freedom of speech, even for organizations. I'd much rather limit government so that it can't dish out favors to special interests rather than to place unnecessary limits on free speech. I personally would want MoveOn.org muzzled, because they keep pushing for more government spending which comes out of my pocket, but on principle I support their right to argue for and promote their positions.

I understand that the issue was whether the 'statute of limitations' was unfair or not. I personally find that issue irrelevant because the federal government should let firms and workers set wages based upon mutually agreeable terms. As long as employees are free to leave and work somewhere else, its an unnecessary intrusion into the private sector. Lily Ledbetter freely accepted the wage she was offered for years and years and years - if she ever once thought it was unacceptable, she could have taken it up with her boss, or found a new job and quit. That she stayed at that job for decades speaks volumes.

I really don't care whether believing adults shouldn't be regarded as children is considered anachronistic or not. Adults should be free to make contracts, and as long as neither party is forced into a contract or outright defrauded, that contract should stand.

I know many of you trolls will be here throughout the confirmation process, right up until the inevitable successful confirmation vote. So here's a tip for you.

If you actually care about sounding like a reasonable person, or about having any chance at all to influence anyone else's opinion, it really is a good idea to avoid phrases like "fellow traveler," which brand someone as sympathetic to communism.

The McCarthy Era is long over, and nobody but you is feeling nostalgiac for that period in American history, so using the creaky old witch hunt rhetoric does not advance your position in the year 2010 in the slightest.

So if at The justin84 Company, the policy is that all white men doing a certain job will be paid $20/hr and all the women and minorities will be paid $15/hr for doing exactly the same work -- that should be a perfectly legal policy? Since, after all, all the women and minorities are perfectly free to seek employment elsewhere? You find that kind of blatant discrimination to be perfectly constitutional and perfectly fair?

RE Citizens United, I disagree that spending money is the same thing as speech. I also disagree that a corporation, which is set up for the very purpose of having an anstract legal existence and liability completely separate from the flesh-and-blood persons that own and operate that corporation, should have rights in the electoral process that are equal to or greater than the rights of the voters themselves. Going beyond the narrow issue presented by the litigants in that case and then undoing all of the legislation and the related court decisions stretching back for decades that regulated corporate political spending was extreme judicial activism, to say the least.

Justin84 and his ilk are as transfixed by liberal capitalism as radical leftists are by Marxism. Pure ideology, no compassion or any sense of human virtue. These orthodoxies should stay in University cafes, and let the grownups handle things in the real world.

I think that some people hear about a claim like the Ledbetter case and just assume that such claims are antithetical to the concept articulated by justin84 that "the federal government should let firms and workers set wages based upon mutually agreeable terms." They don't realize that nothing in the pay discrimination law (Ledbetter's claim relied upon the Civil Rights Act of 1964) interferes in any way with that freedom.

The law only kicks in where there is compelling evidence that there is policy of discrimination in the workplace. The burden of proof would have fallen upon Ledbetter to prove that Goodyear was in violation of the law that provides:

"It shall be an unlawful employment practice for an employer… to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin...."

I suspect that justin84 would agree that that the discrimination described in the law should remain unlawful. It is hard for me to accept that he (or visionbrkr) really support legalizing employment discrimination because of race, gender, etc.

I hope not anyway.

I understand that some conservatives (though not all) do like Citizens United. This is baffling, and probably would have baffled the founders. Why an abstraction like a corporation (which enjoys no right to vote in any election) should be permitted unfettered influence on the outcome of elections meant to create a government by and for "the people" seems decidedly unconservative to me. And to get there by uprooting decades of uncontroversial legislation and settled law hardly shows a conservative judicial philosophy.

i've gotta agree with Justin. Its also difficult for me to believe that EVERYTHING is equal amongst all employees.

Has each employee had exactly the same performance review over the years? I doubt it. Being an employer I know in most businesses employees bring different pluses and minuses to the table.

The burden of proof should rest with the government to prove that not only the employer purposefully underpaid employees but also that the employees did exactly the same work, workload and had the same job performance. I'm sorry but they'd NEVER be able to do that if you have a halfway decent lawyer arguing the facts for the employer. All they'd need to do is show examples of women paid more than men and the case should go away with a lack of merit.

Alas, you give too much credit to Justin! His words come straight from Locke, Smith, and Rand. As you know, a technically free contract does not equal freedom when every feasible contract pays less for women than it does for men (anyone without ideological blinders on could see that!). That is what the court refused to recognize in the Ledbetter case. As a result, Goodyear did not TECHNICALLY violate the law. What the court should have held (and what any Obama nominee should be expected to hold), was that the decision did violate the spirit of the law and the intent of the legislators.

The extreme technicalities are only applicable when one is straining to squeeze a square ideology into the elegance of the real world. But that is only possible if compassion, virtue, and yes, empathy, are a factor in what is a just outcome.

oh and i'm still waiting for a "progressive law" that was overturned by the current court.

Patrick,

while you're 100% correct that those aren't progressive legislation and SS and Medicare haven't been challenged by the court that doesn't change the fact that Lomillalor (as it seems his way) has mis-stated the facts to prove the world out to get him and other progressives.

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"Has each employee had exactly the same performance review over the years? I doubt it. Being an employer I know in most businesses employees bring different pluses and minuses to the table.

The burden of proof should rest with the government to prove that not only the employer purposefully underpaid employees but also that the employees did exactly the same work, workload and had the same job performance. I'm sorry but they'd NEVER be able to do that if you have a halfway decent lawyer arguing the facts for the employer. All they'd need to do is show examples of women paid more than men and the case should go away with a lack of merit."

visionbrkr,

This is really off-point. Of course, different employees may receive different pay increases based on merit and job performance. I am an employer too, and my employees' pay reflects their performance and merit.

And "the government" is not a party to these cases (the case you are discussing is Ledbetter vs. Goodyear) ...the burden of proof is on the plaintiff, as it always is in a civil action. It is a very heavy burden to meet.

But (this may shock, SHOCK you), there are really and truly cases where minorities and women have been discriminated against in the work place. The question raised by your dialong with justin84 and the equating anti-discimination law with the "poind of flesh" of affirmative action (whatever that means) is whether or not discrimination based upon race, religion, or gender should be legal. If not, then persons like Ms. Ledbetter will occasionally press their claims in court, and they should enjoy that right. As you point out, except when there is a strong indication of a clear policy of discrimination, such claims will never get out of the starting gate.

"As you know, a technically free contract does not equal freedom when every feasible contract pays less for women than it does for men (anyone without ideological blinders on could see that!). That is what the court refused to recognize in the Ledbetter case. As a result, Goodyear did not TECHNICALLY violate the law. What the court should have held (and what any Obama nominee should be expected to hold), was that the decision did violate the spirit of the law and the intent of the legislators."

I don't follow your argument. Ledbetter's claim was barred because of the rather surprising holding that the statute of limitations had tolled before she was ever aware of the alleged discriminatory behavior. Statutes of limitation exist so that litigants won't "sit" on their claims, but in this case the litigant had no idea in the early years of her employment that she might have a claim, but she acted in a timely manner when the information became known.

"...while you're 100% correct that those aren't progressive legislation and SS and Medicare haven't been challenged by the court that doesn't change the fact that Lomillalor (as it seems his way) has mis-stated the facts to prove the world out to get him and other progressives."

The "world" is not out to get anyone, but "The Court" has certainly tilted to the right, and there are certain decisions (like Citizens United) that are cause for concern even to thoughtful conservatives and centrists about just how far this Court is willing to go.

The most important point Justin84 is making is that he doesn't care about the law and he doesn't care about legal precedent. He cares about outcomes with which he agrees. This is not "originalism" nor is it "judicial restraint". The most shocking thing about Citizen's United wasn't that it's going to flood the political system with tons of corporate money, though it will, it's that it overturned over a century of legal precedent to do it.

Now, precedents *can* be overturned. The sodomy case from a few years ago, whose name is escaping me right now, specifically talked about how the previous precedent was wrong. And of course, things like Dread Scott shouldn't continue to be upheld simply because they're old. Still, it's a big deal, and the older the precedent becomes and the more supported it becomes through subsequent caselaw and statutes, the bigger the deal if/when it's overturned by a new Supreme Court decision.

As for "progressive laws", I think that was probably too specific a statement, though maybe I just can't think of any relevant decisions off the top of my head. I know that a few years back the court overturned an affirmative action policy the University of Michigan was using. Hmmm, I might think of something later...

when and if cases are truly discriminatory then YES the responsible parties should be held accountable. My problem with those types of laws though is that it inevitably ends up dragging in justifiable cases of merit pay and when it does that's wrong.

visionbrkr, my problem with arguments like that is that that's exactly what the court system is for. You either have a system where there's no framework for bringing discrimination claims or you do have such a framework. The former allows employers to provide legitimate merit pay but also allows discrimination to run unchecked. The latter allows for us to curtail discrimination, but means that blameless employers will have to defend against meritless claims.

As someone who works in employment law, I can tell you that there are indeed a lot of meritless claims. And yes, they are annoying. Still, the vast majority of meritless claims are won or settled before trial.

It's like the arguments about tort reform. It doesn't seem to me that most people arguing for caps understand that there's really not this enormous problem going on. The vast majority of cases are either dismissed, settle for a nominal amount, or are won for a nominal award. Even the very few cases which result in a huge award from a jury often end up reduced either by the judge or through subsequent legal proceedings. And then, of course, you have the huge awards which aren't so much about the plaintiff's merit but about trying to punish the defendant with damages large enough to ensure that they don't repeat the bad behavior.

Anyway, my point is that the courts are, in most cases, pretty good at what they do, including weeding out cases that shouldn't be there. It's frustrating when something meritless slips through, but I think we're better off allowing for some protection against discrimination and trusting the courts to protect defendants who have done nothing wrong.

this is obviously not my forte and is yours. If there's not an abundance of cases where honest employers are dragged through the mud then I'm fine with it. I'm fine in general with the Ledbedder law again as long as its not abused.

So if at The justin84 Company, the policy is that all white men doing a certain job will be paid $20/hr and all the women and minorities will be paid $15/hr for doing exactly the same work -- that should be a perfectly legal policy? Since, after all, all the women and minorities are perfectly free to seek employment elsewhere? You find that kind of blatant discrimination to be perfectly constitutional and perfectly fair?"

Patrick, it's not fair, but you don't need a coercive government to do anything about it. For the record, the Justin84 company cares about making money, and would prefer to hire and retain the best employees, whatever they happened to look like. In any case, the Justin84 company certainly doesn't want to be boycotted by angry customers who hear about that policy either. By the way, in real life I have actually discriminated against my own race in a hiring decision because I felt a minority would be best for the job. Should the government get involved and correct my unfair decision?

But let's suppose I did enact such a policy of paying equally productive men 33% more than women. I'd expect that my best women would leave, and my competitor would be more profitable because that firm could hire women worth $20/hr for, say, $18/hr, and eat my lunch.

So discrimination for discrimination's sake is very costly to firms which embark upon it. In modern America, for every firm that discriminates by race or gender, you have five trying to show how diverse their corporate culture is. If America was an extremely prejudiced society, and there were only a handful of minorities, then maybe some legal intervention could be justified (of course, such a society would probably get the government involved to impose Jim Crow, not the Lily Ledbetter Act). However, America is broadly a tolerant society and the minority population is huge (well over 50% of the total if you include women as a minority which is being actively discriminated against).

Adam, you said:
"Alas, you give too much credit to Justin! His words come straight from Locke, Smith, and Rand. As you know, a technically free contract does not equal freedom when every feasible contract pays less for women than it does for men (anyone without ideological blinders on could see that!)."

To me, thinking that every feasible contract pays less for women is more suggestive of ideological blinders. Even if every contract was discriminatory (and it absolutely isn't), as long people are free to start their own business then they are still free to be paid what they are worth - by themselves.

If women owned businesses would then fail/face severe difficulties because of discrimination, then in almost all certainty a government elected by and for this highly discriminatory hypothetical society would probably enact discriminatory legislation, not progressive legislation.

In any case, I fail to see how Lily Ledbetter was made unfree in any way whatsoever. It's not a loss of freedom to be unable to force another person to give you what they are giving someone else.

To be clear, I oppose discrimination for discrmination's sake - I agree it is unfair and in any case it is bad business practice. That being said, just because I find something wrong/annoying doesn't mean the federal government should get involved.

In a free society, there is a clear mechanism which consistently punishes discrimination and I would prefer to rely on that mechanism than government, for as visionbrkr rightly points out the government can/will get carried away and drag firms which really aren't discriminating for discrimination's sake through the mud. It is difficult to seperate true discrimination from what only appears to be discrimniation. Not only do governments sometimes go too far, they can also take the opposite side of the issue.

"My problem with those types of laws though is that it inevitably ends up dragging in justifiable cases of merit pay and when it does that's wrong."

visionbrkr,

Except that civil rights legislation doesn't "inevitably ends up dragging in justifiable cases of merit pay." Point me toward the evidence that causes you to insist that it does.

"In a free society, there is a clear mechanism which consistently punishes discrimination and I would prefer to rely on that mechanism than government, for as visionbrkr rightly points out the government can/will get carried away and drag firms which really aren't discriminating for discrimination's sake through the mud."

justin84,

I am sorry to learn that you believe discrimination based upon race, gender, and religion should be legal, and that market forces alone always overcome prejudice. There are clear historical reasons why the Civil Rights Act of 1964 was passed, and it is frankly amazing to me that you deny historical facts, and don't support that legislation.

Kindly name the "firms" that have been wrongfully "dragged through the mud" by "the government" as a result of Title VII of the Civil Rights Act.

"But let's suppose I did enact such a policy of paying equally productive men 33% more than women. I'd expect that my best women would leave, and my competitor would be more profitable because that firm could hire women worth $20/hr for, say, $18/hr, and eat my lunch."

You have just described a situation where your company's discrimination makes it more likely that women and minorities in your industry will be discriminated against as a matter of course.

You are supposed to see on your own the incentive to bid up wages continues to exist - if a firm is making excess profit at $18/hr, then another firm can steal those employees away again for $19/hr, the next $19.50/hr, etc. I'm sorry that is not obvious to you.

Patrick,

In as much as The Civil Rights Act eliminated de jure segregation, I support it. I might even give you that in 1964, some government action was necessarily, at least temporarily, to break culturally acquired practices of discrimination (the you can't work or eat here stuff in particular). Outside of that, in terms of regulating private association I hardly think anything would change if that portion of the Civil Rights Act faded away tomorrow. I government intruding on the right of private interaction and associations can be a net negative, even if it is for positive reasons on the surface.

I don't have much experience with discrimination case law, and I'll admit I was just piggybacking on what Visionbrkr said. That said, I do think it is very difficult to determine discrimination and even so as long as said person has plentiful opportunities it's really hard to be bothered.

Take the hypothetical case of Brian and Jeff. They each applied for the same type of job, and both were offered the job for $35,000/yr. Jeff told the firm that he would only accept $40,000/yr. Brian accepted the offer for $35,000. Two years later, Jeff gets an offer from another firm for $45,000 - management likes Jeff, and gives him $48,000 to stay. They also like Brian, and give him a $5,000 raise to $40,000. There is no discrimination here, but if you change the name Brian to Wendy, it looks bad. Especially if Wendy has good performance reviews, and one supervisior once made a poor taste joke in an email about her. Something can look a lot worse than it really is.

I've worked for several organizations and the only discrimination I've ever seen was me turning down a white woman because I thought a black woman would better connect with our target demographic. I also can say that in one of the teams I worked on, that the top two earners were both female. In yet another organization, while women were only 20% of the group they held 40% of the senior leadership positions.

I'm not going to say that discrimination doesn't exist or that market forces ensure perfect outcomes. I don't believe you can get perfect outcomes either way. Bringing government into the mix creates its own distortions and in any case the mix of current attitudes on race/gender and the market costs of discrimination suggest government intervention isn't necessary. Where government intervention isn't necessary it shouldn't be done.

"I'm not going to say that discrimination doesn't exist or that market forces ensure perfect outcomes. I don't believe you can get perfect outcomes either way. Bringing government into the mix creates its own distortions and in any case the mix of current attitudes on race/gender and the market costs of discrimination suggest government intervention isn't necessary. Where government intervention isn't necessary it shouldn't be done."

So you argue that we should repeal the Civil Rights Act?

You have had a lot to say, but the simple question remains whether or not discrimination based upon race, gender, or religion should again be legal in America.

Yes America is generally more tolerant today than it was prior to the passage of civil rights legislation. That does not mean that racism does not exist, or that it might not worsen again. Part of the reason there is less prejudice now than in the Jim Crow era is because of the legislation and court decisions that prohibited segregation and discrimination.

You say that "it is very difficult to determine discrimination and even so as long as said person has plentiful opportunities it's really hard to be bothered." Well the purpose of courts is to delve into difficult questions and you and visionbrkr have failed to support the contention that there is some problem of non-biased employers being dragged into courts. In a society where discrimination is tolerated, "plentiful opportunities" disappear.

Free market economics have never ended discrimation, nor do they produce an equally imperfect outcome to outlawing discrimination. The "whites only" restaurants, inns, and other businesses that existed prior to civil legislation are not some kind of mass hallucination, they are a grim historical reality that your argument chooses to deny.